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Ordinance No. 8,93720000622 -5 ORDINANCE NO. 8937 AN ORDINANCE AUTHORIZING AND DIRECTING THE CITY MANAGER AND THE CITY CLERK OF THE CITY OF BAYTOWN TO EXECUTE AND ATTEST TO A CONTRACT WITH HERBERT G. THOMAS, JR., FOR CONSULTING SERVICES; AUTHORIZING PAYMENT BY THE CITY OF BAYTOWN, AN AMOUNT NOT TO EXCEED FORTY -FOUR AND 501100 DOLLARS ($44.50) PER EACH HOUR WORKED; MAKING OTHER PROVISIONS RELATED THERETO; AND PROVIDING FOR THE EFFECTIVE DATE THEREOF. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS: Section 1: That the City Council of the City of Baytown, Texas, hereby authorizes and directs the City Manager and the City Clerk of the City of Baytown to execute and attest to a contract with Herbert G. Thomas, Jr., for consulting services. A copy of said contract is attached hereto, marked Exhibit "A," and made a part hereof for all intents and purposes. Section 2: That the City Council of the City of Baytown authorizes payment to Herbert G. Thomas, Jr., for consulting services an amount not to exceed FORTY -FOUR AND 50 1100 DOLLARS ($44.50) per each hour worked, pursuant to the contract. Section 3: That pursuant to the provisions of Texas Local Government Code Annotated § 252.048, the City Manager is hereby granted general authority to approve any change order involving a decrease or an increase in costs of TWENTY -FIVE THOUSAND AND NO /100 DOLLARS ($25,000.00) or less, subject to the provision that the original contract price may not be increased by more than twenty-five percent (25 %) or decreased by more than twenty-five percent (25 %) without the consent of the contractor to such decrease. Section 4: This ordinance shall take effect immediately from and after its passage by the City Council of the City of Baytown. INTRODUCED, READ and PASSED by the affirmative vote of the City Council of the City of Baytown this the 22nd day of June, 2000. PETE C. ALFAR , Mayor ATTEST: - a�f GA W W. MITH; City Clerk APPROVED AS TO FORM: ® ACIO RAMIREZ, SR C Attorney c:\MyDocuments \Counci l\ 99- 00\ HerbThomasConsultingSmicesContractHourly CONSULTING SERVICES CONTRACT STATE OF TEXAS § COUNTY OF HARRIS § This contract is entered into on this day of June, 2000, by and between the City of Baytown, Texas, a municipal corporation located in Harris and Chambers Counties, Texas (hereinafter referred to as the "City ") and Herbert G. Thomas, Jr., whose address is 7114 Tonkawa, Baytown, TX 77521 (hereinafter referred to as the "Consultant "). WITNESSETH WHEREAS, the City desires to obtain professional consulting services relative to municipal administrative and planning services, public works, utilities, engineering projects and services and other special projects as requested (hereinafter referred to as "Services "); and WHEREAS, the Consultant is qualified to provide such services and is willing to undertake such services of the City in exchange for fees hereinafter specified; NOW THEREFORE, THAT IN CONSIDERATION of the covenants and agreements hereinafter contained and subject to the terms and conditions hereinafter stated, the parties hereto do mutually agree as follows: I. Employment of Consultant The Consultant will perform as an independent contractor all Services under this Contract to the prevailing professional standards consistent with the level of care and skill ordinarily exercised by members of its profession, both public and private, currently practicing in the same locality under similar conditions including reasonable, informed judgment and prompt, timely action. If the Consultant is representing that he has special expertise in one or more areas to be utilized in this contract, then the Consultant agrees to perform those special expertise services to the appropriate local, regional or national professional standards. II. Scope of Services The Consultant agrees to provide management consulting services to the City from time to time upon request of the City Manager for a period of six months beginning July 1, 2000. The Consultant shall set his own hours of work and will decide the methods of performing the work. He shall not be instructed by the City as to how he will perform his services. No training will be provided by the City of such consulting services. It is agreed that the Consultant will aid, assist and/or advise the City on matters relating to the Services specified herein. The Consultant will not serve as a corporate officer of the City or perform services as such an officer during the term of this Contract. Consulting Services Contract, Page 1 EXHI ®R A ® The City agrees that the Consultant shall not be required to work full -time for the City under this Contract. The Consultant is free to work for other cities or corporations during the term of this Contract. He may also advertise his services to the public, at his discretion. The Consultant shall not undertake any work or provide any services under this Contract unless given prior authorization to proceed by the City Manager. For each task or project requested by the City, the City shall provide the nature and scope of the task or project. The Consultant shall then complete the task or project in a prompt and timely manner. III. Compensation The City agrees to pay the Consultant for Services performed under this Contract an amount not to exceed FORTY -FOUR AND 501100 DOLLARS ($44.50) per each hour worked. The Consultant shall bear the expenses associated with his services, except as otherwise provided herein. The City shall provide workspace for the Consultant at City Hall under this Contract and shall furnish the Consultant with supplies and tools. The City shall not be required to pay any amount in excess of the original proposed amount unless the City shall have approved in writing in advance (prior to the performance of the additional work) the payment of additional amounts. The Consultant is an independent contractor and, therefore, the City shall not be providing the Consultant workers' compensation coverage, vacation time or sick leave. The City will not be withdrawing from the Consultant's compensation withholding taxes, social security taxes, unemployment insurance contributions or payroll taxes. The Consultant agrees to make any payments and reports required by state or federal law of self - employed persons in compliance with all applicable laws. IV. Term This Contract shall begin on July 1, 2000, and shall terminate on December 1, 2000, unless terminated earlier in accordance with its terms. V. Ownership of Documents Any materials and documents prepared or assembled by the Consultant under this Contract shall become the sole property of the City and shall be delivered to the City, without restriction on future use, within the time period specified by the City Manager. VI. Right to Inspect Records The Consultant agrees that the City shall have access to and the right to examine any ® directly pertinent books, documents, papers and records of the Consultant involving transactions relating to this Contract. Consulting Services Contract, Page 2 VIII. Indemnity THE CONSULTANT AGREES TO AND SHALL INDEMNIFY, HOLD HARMLESS, AND DEFEND THE CITY, ITS OFFICERS, AGENTS AND EMPLOYEES, FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, CAUSES OF ACTION, SUITS AND LIABILITY OF EVERY HIND, INCLUDING ALL EXPENSES OF LITIGATION, COURT COSTS, AND ATTORNEYS' FEES, FOR INJURY TO OR DEATH OF ANY PERSON, OR FOR ANY AND ALL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SERVICES PERFORMED BY THE CONSULTANT PURSUANT TO THIS CONTRACT, THE CONDUCT OR MANAGEMENT OF THE CONSULTANT'S BUSINESS OR ACTIVITIES, OR FROM ANY ACT OR OMISSION BY THE CONSULTANT, HIS AGENTS, SERVANTS, EMPLOYEES, SUBCONTRACTORS, GUESTS, OR INVITEES, WHERE SUCH INJURIES, DEATH OR DAMAGES ARE CAUSED BY (I) THE JOINT NEGLIGENCE OF THE CITY AND ANY OTHER PERSON OR ENTITY OR THE (II) JOINT OR SOLE NEGLIGENCE OF THE CONSULTANT. IT IS THE EXPRESSED INTENTION OF THE PARTIES HERETO, BOTH THE CONSULTANT AND THE CITY, THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH IS INDEMNITY BY THE CONSULTANT TO INDEMNIFY AND PROTECT THE CITY FROM THE CONSEQUENCES OF (I) THE CITY'S OWN NEGLIGENCE, WHERE THAT NEGLIGENCE IS A CONCURRING CAUSE OF THE RESULTING INJURY, DEATH OR DAMAGE AND /OR (II) THE CONSULTANT'S OWN NEGLIGENCE, WHERE THAT NEGLIGENCE IS THE SOLE OR CONCURRING CAUSE OF THE RESULTING INJURY, DEATH OR DAMAGE. FURTHERMORE, THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH SHALL HAVE NO APPLICATION TO THE CITY FOR ANY CLAIM, LOSS, DAMAGE, CAUSE OF ACTION, SUIT AND LIABILITY WHERE THE INJURY, DEATH OR DAMAGE RESULTS FROM THE SOLE NEGLIGENCE OF THE CITY, UNMIXED WITH THE FAULT OF ANY OTHER PERSON OR ENTITY. In the event that any action or proceeding is brought against the City by reason of any of the above, the Consultant further agrees and covenants to defend the action or proceeding by legal counsel acceptable to the City. The indemnity provided hereinabove shall survive the termination and/or expiration of this Contract. VIII. Independent Contractor The Consultant's status will be that of an independent contractor and not an agent, servant employee or representative of the City in the performance of this Contract. No term or provision or act of the Consultant or the City under this Contract will be construed as changing that status. The Consultant will have exclusive control of and the exclusive right to control the details of and the work performed hereunder, and shall be liable for the acts and omissions of his officer, agents, or employees, contractors, subcontractors and the consultants. The doctrine of ® respondeat superior shall not apply between the City and the Consultant, his officers, agents employees, contractors, subcontractors and consultants; and nothing herein shall be construed as creating a partnership or joint enterprise between the City and the Consultant. Consulting Services Contract, Page 3 ® � IX. Termination The City and the Consultant, beside all other rights or remedies they may have, shall have the right to terminate this Contract with or without cause upon ten (10) days' written notice from the City Manager to the Consultant or from the Consultant to the City Manager of the City's or the Consultant's election to do so. Furthermore, the City may immediately and without notice terminate this Agreement if the Consultant (i) fails to commence the Services required herein in accordance with the provisions of this Contract; (ii) fails to diligently provide Services in an efficient, timely and careful manner and in strict accordance with the provisions of this Contract; (iii) fails to use an adequate number or quality of personnel to complete to the Services; or (iv) fails to perform any of its obligations under this Contract, Upon delivery of any notice of termination required herein, the Consultant shall discontinue all services in connection with the performance of the Contract. Within ten (10) days after receipt of the notice of termination, the Consultant shall submit a final statement showing in detail the services satisfactorily performed and all other appropriate documentation required herein for payment of services. Any act of termination by the City shall not be deemed a waiver of any other right or remedy of the City. If after exercising any such remedy due to the Consultant's nonperformance under this Contract, the cost to the City of the performance of the balance of the Services is in excess of that part of the Contract sum which has not theretofore been paid to the Consultant hereunder, the Consultant shall be liable for and shall reimburse the City for such excess. X. Confidential Information The Consultant hereby acknowledges and agrees that he or his representatives my have access to or otherwise receive information during the furtherance of its obligations in accordance with this Contract, which is of a confidential, non -pubic or proprietary nature. The Consultant shall treat any such information received in full confidence and will not disclose or appropriate for his own use or for the use of any third party, at any time during or subsequent to this Contract, such confidential information. As used herein, "confidential information" means all oral and written information concerning the City of Baytown, its departments, officers and employees and all oral and written information concerning the City or its activities, which is of a non - public, proprietary or confidential nature, including, without limitation, information pertaining to customer lists, services, methods, processes and operating procedures, together with all analyses, compilation, studies or other documents, whether prepared by the Consultant or others, which contain or otherwise reflect such information. The term "confidential information" shall not include such materials which are or become generally available to the public other than ® as a result or disclosure of the Consultant or are required to be disclosed by a governmental authority as determined by the City Attorney. Consulting Services Contract, Page 4 XI. Successors and Assigns The City and the Consultant bind themselves along with their respective successors, executors, administrators and assigns to the other party of this Contract and to the successors, executors, administrators and assigns of such other party in respect to all covenants of this Contract. Neither the City nor the Consultant shall assign or transfer its interest herein without the prior written consent of the other. MI. Applicable Law This Contract is entered into the subject to the Charter and Ordinances of the City as they may be amended from time to time, and is subject to and is to be construed, governed and enforced under all applicable State of Texas and federal laws. The Consultant will make any and all reports required per federal, state or local law, including, but not limited to, proper reporting to the Internal Revenue Service as required in accordance with the Consultant's income. Situs of this contract is agreed to be Baytown, Harris County, Texas, for all purposes, including performance and execution. XIII. Severability If any of the terms, provisions, covenants, conditions or any other part of this Contract are held for any reason to be invalid, void or unenforceable, the remainder of the terms provisions convenience, conditions or any other part of this Contract shall remain in full force and effect and shall in no way be affected, impaired or invalidated. XIV. R amPtliPc No right or remedy granted herein or reserved to the parties is exclusive of any other right or remedy herein by law or equity provided or permitted, but each shall be cumulative of every other right or remedy given hereunder. No covenant or condition of this Contract may be waived without written consent of the parties. Forbearance or indulgence by either party shall not constitute a waiver of any covenant or condition to be performed pursuant to this Contract. XV. Entire Agreement This Contract embodies the complete agreement of the parties hereto, superseding all oral or written previous and contemporaneous agreements between the parties relating to the matters herein, and except as otherwise provided herein, cannot be modified without written agreement of the parties. Consulting Services Contract, Page 5 ® XVI. Non - waiver It is further agreed that one or more instances of forbearance by the City in the exercise of its rights herein shall in no way constitute a waiver thereof. XVII_ Headings The headings of this Contract are for the convenience of reference only and shall not affect in any manner any of the terms and conditions hereof. XVIII. Venue The parties to this Contract agree and covenant that this Contract will be enforceable in Baytown, Harris . County, Texas; and that if legal action is necessary to enforce this Contract, exclusive venue will lie in Baytown, Harris County, Texas. XIX. Ambiguities In the event of any ambiguity in any of the terms of this Contract, it shall not be construed for or against any party hereto on the basis that such parry did or did not author the same. XX. NntirP All notices required to be given hereunder shall be given in writing either by telecopier, overnight, or facsimile transmission, certified or registered mail at the respective addresses of the parties set forth herein or at such other address as may be designated in writing by either party. Notices given by mail shall be deemed given three (3) days after the date of mailing thereof to the following addresses: CONSULTANT Herbert G. Thomas, Jr. 7114 Tonkawa Baytown, TX 77521 CITY City of Baytown Attn: City Manager P.O. Box 424 Baytown, TX 77522 ® Fax No. (281) 420 -6586 Consulting Services Contract, Page 6 XXI. Time of the Essence Both the Consultant and the City acknowledge that time is of the essence in this Contract. XXII. Authori The officers executing this Contract on behalf of the parties hereby represent that such officers have full authority to execute this Contract and to bind the party he/she represents. XXIII. No Third Partv Beneficiaries This Contract shall not bestow any rights upon any third parry, but rather, shall bind and benefit the Consultant and the City only. XXIV. Entire Agreement This Contract represents the entire agreement of the parties hereto and may only be amended or supplemented by mutual agreement of parties hereto in writing. IN WITNESS WHEREOF, the parties hereto have. executed this Contract in multiple copies, each of which shall be deemed to be an original, but all of which shall constitute but one and the same agreement on the day of 2000, the date of execution by the City Manager of the City of Baytown. ATTEST: GARY W. SMITH, City Clerk Consulting Services Contract, Page 7 CONSULTANT HERBERT G. THOMAS, JR. CITY OF BAYTOWN MONTE MERCER, City Manager APPROVED AS TO FORM: NACIO RAMIRE , City Attorney STATE OF TEXAS § COUNTY OF HARRIS § Before me, , the undersigned notary public, on this day personally appeared HERBERT G. THOMAS, JR., known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same for the purposes and consideration therein expressed. 2000. SUBSCRIBED AND SWORN before me this day of Notary Public in and for the State of Texas My Commission Expires: c:klh25 3\ Contracts\ HerbThomasConsultingContract\ ConsultingServicesCon tract061900CleanHourly Consulting Services Contract, Page 8